For The vs C. Baskar And
2023 Latest Caselaw 1439 Cal/2

                 IN THE HIGH COURT AT CALCUTTA

               (Testamentary & Intestate Jurisdiction)

                              ORIGINAL SIDE

Present:

The Hon'ble Justice Krishna Rao



                              IA GA 1 of 2018
                      (Old No. GA 2038 of 2018)
                             PLA 233 of 2016

                             In The Goods Of :
                      Ganesh Prasad Bose (Dec.)




           Mr. Jishnu Chowdhury
           Mr. Aritra Basu
           Mr. Arnab Sardar
                                                 .....For the petitioner.


           Mr. Anirban Ray
           Mr. Jayanta Sengupta
           Mr. M.K. Surana
           Mr. Prantik Roy
                                         .....For the respondent/executor.

Hearing Concluded On : 08.05.2023

Judgment on : 21.06.2023

Krishna Rao, J.: -

1. The applicant, Ranadhir Bose had preferred the present application

praying for revocation of probate granted in terms of the Will dated 6th

February, 2013 of the deceased Ganesh Prasad Bose.

2. Mr. Jishnu Chowdhury, Learned Senior Advocate with Mr. Aritra Basu,

learned Advocate representing the applicant submits that Prabodh

Chandra Bose and Bivabati Bose had three sons namely Sushil Kumar

Bose, Ganesh Prasad Bose and Jagannath Bose, now all are deceased.

The applicant is the son of Sushil Kumar Bose. The deceased Ganesh

Prasad Bose had a distant cousin, namely Sefalika Dey, who had three

sons and three daughters out of which the respondents are the two

sons.

3. In the month of April, 2016, the applicant received a telephone call

from the State Bank of India and accordingly the applicant visited the

bank wherein it was informed to the applicant that the deceased had

shown the applicant as heir of the deceased. From the documents of

the bank, the applicant also came to know that the deceased had

executed a Will bequeathing his property to the State Bank of India

subject to the mortgage being the landlord. In the said Will, it was also

made clear that if mortgage would be cleared, State Bank of India

would not receive the property. The applicant had informed the bank

that the applicant would pay back the loan and redeem the mortgage

within a reasonable time and State Bank of India had agreed for the

same. The applicant had received a notice under Section 13(2) of the

SARFAESI Act, and accordingly the applicant had sent the reply to the

said notice and subsequently when the applicant approached the bank

for settlement, the applicant came to know that the dues has already

been paid.

4. Mr. Chowdhury with Mr. Basu submit that on enquiry, the applicant

came to know that this Court has granted probate to the respondents.

Mr. Basu submits that the respondents have obtained probate by fraud

as the respondents have not disclosed the name of the applicant as heir

of the deceased in the probate application and no citations were also

issued.

5. Mr. Chowdhury with Mr. Basu submit that the applicant is the Class II

legal heir of the deceased and the respondents had the knowledge

about the relationship of the applicant with the deceased but the

respondents by suppressing the material fact have obtained probate as

the applicant could not get an opportunity to lodge caveat.

6. Mr. Chowdhury with Mr. Basu in support of his case has relied upon

the following decisions:

a. (2008)10 SCC 489 (G. Gopal -vs- C. Baskar and Others).

b. (2008)1 SCC 267 (Basanti Devi -vs- Ravi Prakash Ram Prasad Jaiswal).

c. 2015 SCC Online Cal 590 (Smt. Kalyani Maite and Anr. -vs- Shri Shridam Maite).

7. Mr. Anirban Ray, Learned Senior Advocate representing the

respondents submits that the applicant does not have any caveatable

interest and as such the applicant cannot claim for revocation of the

probate granted by this Court in terms of the Will dated 6th February,

2013.

8. Mr. Ray submits that the respondents are the sons of the sister of the

deceased and during the lifetime, the deceased had executed a Will by

appointing the respondents as executors of his last Will and Testament

dated 6th February, 2013.

9. Mr. Ray submits that the applicant relied upon the documents of the

bank and from the said documents, it is evident that both the

respondents were described as nephew of the deceased.

10. Mr. Ray submits that the respondents have proved the Will before this

Court wherein the attesting witness of the Will namely Biswarup

Samanta had filed his affidavit stating that the deceased had executed

the Will in his presence as well as in the presence of another attesting

witness namely Arup Kumar Mukherjee while possessing sound mind,

good memory and full testamentary capacity.

11. Mr. Ray submits that the applicant was aware of the Will and the grant

of probate and has waited till the payment is made by the respondents

to the State Bank of India to the extent of Rs.13,50,000/-which was

due in the name of the deceased.

12. Mr. Ray submits that in the genealogical table, the applicant has

suppressed the fact about the details of the mother of the respondents

as the mother of the respondent was the sister of the deceased and the

respondents are the sons of the sister of the deceased.

13. Mr. Ray submits that the respondents have duly published the citation

of the proceeding before grant of probate by this Court. Mr. Ray

submits that the application filed by the applicant is misconceived and

is liable to be rejected.

14. Mr. Ray relied upon the following decisions:

a. 1990 SCC OnLine Bom 117 (Asber Reuben Samson and Others -vs- Eillah Solomon and Others).

b. AIR 1955 SC 566 (Anil Behari Ghosh -vs- Smt. Latika Bala Dassi and Others.

15. Heard the learned Counsel for the respective parties, perused the

materials on record and the judgments relied by the parties.

16. Section 263 of the Indian Succession Act, 1925 reads as follows:

"263. Revocation or annulment for just cause:- the grant of probate or letters of admission may be revoked or annulled for just cause.

Explanation: Just cause shall be deemed to exist where:-

(a). the proceedings to obtain the grant were defective in substance; or

(b) the grant was obtained fraudulently by making if all suggestion, or by concealing from the court something material to the case; or

(c) the grant was obtained by means of untrue allegation of a fact essential in point of law to justify the grant, though such allegation was made in ignorance or inadvertently; or

(d) the grant has become useless and inoperative through circumstances; or

(e) the person to whom the grant was made has wilfully and without reasonable cause omitted to exhibit and inventory or account in accordance with the provisions of Chapter VII of this Part, or has exhibited under the Chapter and inventory or account which is untrue in material respect."

17. The respondents have filed an application for grant of probate of the

last Will and testament of the deceased Ganesh Chandra Bose, dated

6th February, 2013. In the said application, the respondents have made

the following averments with regard to the relatives of the deceased:

"5. The deceased has no issues and his wife and mother predeceased him and at the time of his death the deceased left the following persons and relatives who have inherited to the estate of the deceased and he died intestate under the provisions of Hindu Succession Act, 1956 namely:

(a) Amarnath Dey, son of late Sachindra Nath Dey, residing at 193/1, Kasba Road, Police Staion Kasba, Kolkata-700042 (son of the deceased's predeceased sister Sefalika Dey).

(b) Abhinaba Dey, son of late Sachindra Nath Dey, residing at 193/1, Kasba Road, Police Staion Kasba,

Kolkata-700042 (son of the deceased's predeceased sister Sefalika Dey).

Apart from the above mentioned persons, the deceased left no other heirs, heiresses and legal representative under the provision of Hindu Succession Act, 1956 and they have no objection as to grant of probate of the said last Will and Testament of the deceased above named in favour of your petitioner as Executor named therein and they put their respective consent separately by affirming affidavits and the same are annexed hereto and collectively marked with letter "C"."

18. The letter "C" as mentioned in paragraph 5 of the application (supra), it

is found that Amarnath Dey and Abhinaba Dey have filed their

affidavits stating that they have no objection and put their consent as

to grant of probate in respect of the last Will and Testament of deceased

dated 6th February, 2013 in favour of the executor Abhinava Dey.

19. In prayer (a) of the application being PLA No. 233 of 2016, the

petitioner has prayed for issuance of General Citation by affixing a copy

thereof on the Notice Board of the Collectorate at Calcutta and gist of

the General Citation be published in the newspapers in English edition

of The Statesman and Bengali edition of Bartaman.

20. The respondent had filed supplementary affidavit by enclosing the copy

of English newspaper "The Statesman" and Bangla News Paper

"Bartaman" dated 3rd February, 2017 wherein General Citation of the

case was published. The Counsel for the petitioner has not filed any

reply to the supplementary affidavit and has accepted the publication of

General Citation and thus the submissions made by the Counsel for

the petitioner that no citation was published is not acceptable, but the

applicant has specifically pleaded that no Citation was issued upon the

applicant in respect of the probate proceeding and no notice was

received by the applicant. The respondent has not produce any

evidence to prove that any General Citation was issued except the

publication. The respondent has neither examined the bailiff as witness

to establish that the general citation was issued nor any certificate is

produced to prove about issuance of General Citation.

21. In the case of Smt. Kalyani Maite and Anr. (supra), the Division

Bench of this Court held that since the Citation of the probate

proceeding was not served upon the applicants who has interest in the

estate of the deceased as legal heirs, the grant of probate is liable to be

revoked.

22. As regard the submission made by the Counsel for the respondent that

the applicant is not having any caveatable interest in the estate of the

deceased, this Court finds that the applicant is also the son of Sushil

Kumar Bose who is the brother of the deceased Ganesh Prasad Bose.

The respondent is the son of the deceased's predeceased sister and the

applicant is the son of the brother of the deceased and thus the

submissions made for the respondent that the applicant is not having

caveatable interest is not acceptable.

23. The Hon'ble Supreme Court in the case of G. Gopal (supra), held that

it is settled that if a person who has even a slight interest in the estate

of the deceased testator is entitled to file caveat and contest the grant of

probate of the Will of the testator.

24. In the illustrations of Section 263 of the Indian Succession Act, 1925,

Clause (ii) reads as follows: "The grant was made without citing parties

who ought to have been cited." In the present case, the applicant being

the son of one of the brother of the deceased and the applicant is

having caveatable interest but the respondent by filing the application

for grant of probate have made a false averments and had not cited the

applicant as party to the said application.

25. The judgments referred by Mr. Ray are distinguishable from the facts

and circumstances of the present case.

26. In the present case, the respondent has not cited the applicant as party

and no General Citation was served upon the applicant with regard to

the probate proceeding and thus the probate granted by this court with

respect of the Will dated 6th February, 2013 is hereby revoked.

27. G.A. No. 1 of 2018 (Old No. G.A. No. 2038 of 2018) is thus allowed.

(Krishna Rao, J.)

Later :

Counsel for the respondent prays for stay of the judgment. Counsel

for the petitioner raises objection. Considering the submissions made by the

Counsel for the respondent, prayer is refused.

(Krishna Rao, J.)